Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was the Commanding Officer of the Boston Army Base. Charges were .brought against him for obtaining meals, haircuts, tailoring, and other services from facilities on the base by an abuse of his authority. He was also charged with violating general regulations by using the official motor pool for private purposes, with wrongful association with enlisted personnel, and with dishonorably inducing a married woman to abandon her husband. Brought to trial before a general court-martial he entered a plea of not guilty. Excepting certain allegations in the several specifications, the court found him guilty of all charges and sentenced him to dismissal and total forfeitures of all pay and allowances. Intermediate reviewing authorities affirmed. The accused appealed to this court setting out nine assignments of error.
Before charges were preferred, the accused’s conduct was investigated by the Inspector General, Headquarters, First Army. A number of witnesses made statements to him concerning the accused. The Inspector General’s report and the formal charges against the accused were forwarded by the Commanding General, First Army, to the Commanding General, Fort D evens, Massachusetts, for “appropriate action.” The Inspector General’s report was to be returned to First Army when “pertinent information has been extracted.” In due course, an Article 32 investigation was held in which the accused was represented by Lieutenant Colonel Slattery, a member of the Judge Advocate General’s Corps. The investigating officer considered a “summary” of expected testimony of numerous witnesses. On July 19, 1956, Colonel Slat-tery sent a letter to the Commanding General, First Army. In it, he reviewed the proceedings against the ac-[261]*261eused. Particularly, lie referred to the Inspector General’s report and expressed the belief that the Staff Judge Advocate’s office at Fort Devens prepared the summaries of expected testimony, which were considered by the investigating officer, from the testimony of the witnesses before the Inspector General. He noted that one of the witnesses later discovered that his testimony before the Inspector General was in error, and he had expressly requested a representative of the Inspector General to correct the error; the summary of his expected testimony, however, did not reflect the change. Counsel maintained that it was “material to the preparation of the defense” to inspect or to be furnished a copy of the actual testimony of each witness listed on the charge sheet and of the witnesses whose testimony had been forwarded with the charges. He represented that he was not asking for, and did not want “any information that affects the National Security of the United States.” On July 27, the Commanding General, First Army, wrote to defense counsel informing him that the request had been referred to the commander of Fort Devens for action. The next day the case came on for trial.
After arraignment b.ut before the plea, defense counsel moved for production of the transcript of the testimony of the witnesses and for time in which to examine it. In support of his motion he argued that he had questioned various witnesses and had ascertained that there were discrepancies between their present recollection of the facts and the summaries of expected testimony. The law officer determined, by inquiry, that except for study of the transcript, the defense did not need additional time to prepare and it had no complaint in regard to the legal sufficiency of the Article 32 investigation. He then denied the motion. He advised defense counsel as follows: “If it appears that a witness is testifying untruthfully, or has made an inconsistent statement, we will consider that portion — the production of that portion of the Inspector General’s report.”1
During the afternoon of the first day of trial the prosecution called four witnesses. The first witness mentioned the investigation but did not say whether he had testified; the second witness denied that he had been questioned by anyone from the Inspector General’s office; the fourth witness did not say anything about the investigation. The third witness was subjected to searching cross-examination in which he admitted that he had been questioned by the Inspector General. The law officer called counsel to the bar and indicated that since there might be inconsistencies between the witness’ testimony and his earlier statements to the Inspector General the transcript of his testimony in that investigation would be made available to the defense. Defense counsel said that he would like to read the transcript but he was not “withdrawing” from his original motion. At the conclusion of the side bar conference, the witness was excused. The next morning, in an out-of-court hearing, the law officer advised defense counsel that he had talked with the staff judge advocate and had been informed that “all of the testimony taken in the Inspector General’s investigation” was available for inspection by the defense. Defense counsel contended that the offer was “of no value” unless he was accorded a reasonable time to examine the material. The law officer interrupted counsel’s remarks, and closed the conference with the comment, “Let’s . . . get on with this ease.” When court reconvened, defense counsel moved for a forty-eight hour continuance to examine the Inspector General’s transcript. The motion was denied. Sometime during the noon recess, defense counsel was given a transcript of the testimony of the witnesses before the Inspector General. On returning to the courtroom, he renewed [262]*262his motion for a continuance for a “reasonable time” to examine the transcript, which contained over 300 pages. This motion was also denied. Five other witnesses testified for the prosecution before court adjourned for the day.
The accused assigns as error the law officer’s rulings on the various motions in regard to the Inspector General’s transcript. In support of his argument he relies upon the decision of the United States Supreme Court in Jencks v United States, 353 US 657, 1 L ed 2d 1103, 77 S Ct 1007 (1957). In that case the Supreme Court held that it was prejudicial error to deny the defense inspection of reports to the Federal Bureau of Investigation made by prosecution witnesses which recounted “events and activities related in their testimony.” The court held that the defendant’s right to inspection did not depend upon a preliminary showing of inconsistency between the witness’ previous statement and his testimony at the trial. In part, the Court said (page 667) :
“Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict . . . the accused is helpless to know or discover conflict without inspecting the reports.”
Applying the rationale of the Jencks case to the facts here, it is clear that the law officer was wrong in deciding that the defense was not entitled to the transcript of the testimony of a witness before the Inspector General until it appeared that he was “testifying untruthfully, or has made an inconsistent statement.” The right to inspection arises as soon as it appears that the witnesses have submitted earlier statements on matters “related in their testimony.” Jencks v United States, supra, page 1012.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was the Commanding Officer of the Boston Army Base. Charges were .brought against him for obtaining meals, haircuts, tailoring, and other services from facilities on the base by an abuse of his authority. He was also charged with violating general regulations by using the official motor pool for private purposes, with wrongful association with enlisted personnel, and with dishonorably inducing a married woman to abandon her husband. Brought to trial before a general court-martial he entered a plea of not guilty. Excepting certain allegations in the several specifications, the court found him guilty of all charges and sentenced him to dismissal and total forfeitures of all pay and allowances. Intermediate reviewing authorities affirmed. The accused appealed to this court setting out nine assignments of error.
Before charges were preferred, the accused’s conduct was investigated by the Inspector General, Headquarters, First Army. A number of witnesses made statements to him concerning the accused. The Inspector General’s report and the formal charges against the accused were forwarded by the Commanding General, First Army, to the Commanding General, Fort D evens, Massachusetts, for “appropriate action.” The Inspector General’s report was to be returned to First Army when “pertinent information has been extracted.” In due course, an Article 32 investigation was held in which the accused was represented by Lieutenant Colonel Slattery, a member of the Judge Advocate General’s Corps. The investigating officer considered a “summary” of expected testimony of numerous witnesses. On July 19, 1956, Colonel Slat-tery sent a letter to the Commanding General, First Army. In it, he reviewed the proceedings against the ac-[261]*261eused. Particularly, lie referred to the Inspector General’s report and expressed the belief that the Staff Judge Advocate’s office at Fort Devens prepared the summaries of expected testimony, which were considered by the investigating officer, from the testimony of the witnesses before the Inspector General. He noted that one of the witnesses later discovered that his testimony before the Inspector General was in error, and he had expressly requested a representative of the Inspector General to correct the error; the summary of his expected testimony, however, did not reflect the change. Counsel maintained that it was “material to the preparation of the defense” to inspect or to be furnished a copy of the actual testimony of each witness listed on the charge sheet and of the witnesses whose testimony had been forwarded with the charges. He represented that he was not asking for, and did not want “any information that affects the National Security of the United States.” On July 27, the Commanding General, First Army, wrote to defense counsel informing him that the request had been referred to the commander of Fort Devens for action. The next day the case came on for trial.
After arraignment b.ut before the plea, defense counsel moved for production of the transcript of the testimony of the witnesses and for time in which to examine it. In support of his motion he argued that he had questioned various witnesses and had ascertained that there were discrepancies between their present recollection of the facts and the summaries of expected testimony. The law officer determined, by inquiry, that except for study of the transcript, the defense did not need additional time to prepare and it had no complaint in regard to the legal sufficiency of the Article 32 investigation. He then denied the motion. He advised defense counsel as follows: “If it appears that a witness is testifying untruthfully, or has made an inconsistent statement, we will consider that portion — the production of that portion of the Inspector General’s report.”1
During the afternoon of the first day of trial the prosecution called four witnesses. The first witness mentioned the investigation but did not say whether he had testified; the second witness denied that he had been questioned by anyone from the Inspector General’s office; the fourth witness did not say anything about the investigation. The third witness was subjected to searching cross-examination in which he admitted that he had been questioned by the Inspector General. The law officer called counsel to the bar and indicated that since there might be inconsistencies between the witness’ testimony and his earlier statements to the Inspector General the transcript of his testimony in that investigation would be made available to the defense. Defense counsel said that he would like to read the transcript but he was not “withdrawing” from his original motion. At the conclusion of the side bar conference, the witness was excused. The next morning, in an out-of-court hearing, the law officer advised defense counsel that he had talked with the staff judge advocate and had been informed that “all of the testimony taken in the Inspector General’s investigation” was available for inspection by the defense. Defense counsel contended that the offer was “of no value” unless he was accorded a reasonable time to examine the material. The law officer interrupted counsel’s remarks, and closed the conference with the comment, “Let’s . . . get on with this ease.” When court reconvened, defense counsel moved for a forty-eight hour continuance to examine the Inspector General’s transcript. The motion was denied. Sometime during the noon recess, defense counsel was given a transcript of the testimony of the witnesses before the Inspector General. On returning to the courtroom, he renewed [262]*262his motion for a continuance for a “reasonable time” to examine the transcript, which contained over 300 pages. This motion was also denied. Five other witnesses testified for the prosecution before court adjourned for the day.
The accused assigns as error the law officer’s rulings on the various motions in regard to the Inspector General’s transcript. In support of his argument he relies upon the decision of the United States Supreme Court in Jencks v United States, 353 US 657, 1 L ed 2d 1103, 77 S Ct 1007 (1957). In that case the Supreme Court held that it was prejudicial error to deny the defense inspection of reports to the Federal Bureau of Investigation made by prosecution witnesses which recounted “events and activities related in their testimony.” The court held that the defendant’s right to inspection did not depend upon a preliminary showing of inconsistency between the witness’ previous statement and his testimony at the trial. In part, the Court said (page 667) :
“Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict . . . the accused is helpless to know or discover conflict without inspecting the reports.”
Applying the rationale of the Jencks case to the facts here, it is clear that the law officer was wrong in deciding that the defense was not entitled to the transcript of the testimony of a witness before the Inspector General until it appeared that he was “testifying untruthfully, or has made an inconsistent statement.” The right to inspection arises as soon as it appears that the witnesses have submitted earlier statements on matters “related in their testimony.” Jencks v United States, supra, page 1012.
If denial of the initial motion was the extent of the law officer’s error, the accused would have little cause for complaint. He was, in fact, given a transcript of the testimony. However, possession is not enough. Unless he has a reasonable opportunity to inspect the transcript, physical possession is insufficient. Consequently, the law officer erred in denying defense counsel a continuance for the purpose of examining the lengthy transcript to determine what use to make of it. See 18 USC § 3500; cf. United States v Sizemore, 2 USCMA 572, 10 CMR 70; United States v Frye, 8 USCMA 137, 23 CMR 361.
Government counsel maintain that since defense counsel had physical possession of the transcript he could have examined it during the remaining days of the trial, and if he found inconsistencies he could have recalled the prosecution witnesses for further examination. The Government’s argument presupposes a duty on the part of defense counsel to act in the premises. We have emphasized that a trial is not a game. Thus, we have refused to allow an accused to assert error at this level when defense counsel at the trial withheld objection to known improper conduct by trial personnel until after an unfavorable verdict. United States v Wolfe, 8 USCMA 247, 24 CMR 57. We have also refused to allow a claim of error based upon conduct induced by defense counsel. United States v Jones, 7 USCMA 623, 23 CMR 87. And we have held that defense counsel’s failure to object at the proper time will preclude consideration of the error on appeal. United States v Fisher, 4 USCMA 152,15 CMR 152. However, we have not held, and the law does not require defense counsel to take affirmative action later in the trial to cure an earlier erroneous ruling by the law officer to which proper objection had been interposed. Cf. United States v Smith, 7 USCMA 102, 21 CMR 228. We conclude, therefore, that under the circumstances of this case, the accused was prejudiced by the law officer’s denial of a continuance.
In view of our holding it is unnecessary to dispose specifically of other claims of error by the accused. The [263]*263findings of guilty and the sentence are set aside. A rehearing may he ordered.
Judge FERGUSON concurs.